Penn's v. Spence

54 Ala. 35

• Court: Supreme Court of Alabama
• Decided: December 15, 1875
• Status: Published

Opinion

MANNING, J.

Tbe bill in tbis cause was _ demurred to _ by defendants below, and tbe demurrer sustained. Thereupon, it was amended, and afterwards was dismissed by the chancellor, without prejudice to tbe filing of another bill.

In tbe original bill, tbe right set up by complainant was alleged to be derived from a sale of tbe lands in controversy by tire administrators of the estate of tbe deceased former owner by virtue of a special act of tbe legislature, which was not set' forth or indicated by tbe title of it, ot otherwise. By tbe amendments to tbe bill, tbis act was set forth, and the right claimed then alleged to be derived, from a sale made of the lands by tbe legatees of tbe deceased — a change which, according to decisions of this court, makes a case so different from' that of tbe original bill, that one cannot be engrafted by amendment on tbe other.

In my opinion, tbe bill, as amended, is defective in not averring, with sufficient particularity, tbe facts of tbe transactions on which tbe right of complainant depends, and in alleging conclusions of law, instead of tbe facts of tbe case — ■ defects which were objected to by demurrer to tbe original bill. And I would prefer to put our decision upon this ground. But as tbe judgment of tbe court is. founded upon the departure in tbe amended bill, from tbe case originally made, it is not necessary to enlarge upon any other objection.

Tbe decree of tbe chancellor is affirmed, with costs.